University of Virginia Library

13. CHAPTER XIII.

Moore's National Airs.

The third day after the interviews just related, the whole party
left Rattletrap for Timbully, where their arrival was expected by
the bride and bridegroom, if such terms can be applied to a woman
of forty-five and a man of sixty. The Duke's county circuit
and oyer and terminer were about to be held, and it was believed
that Mary Monson was to be tried. By this time so lively an
interest prevailed among the ladies of the McBrain and Dunscomb
connections in behalf of the accused, that they had all come to a
determination to be present in court. Curiosity was not so much
at the bottom of this movement as womanly kindness and sympathy.
There seemed a bitterness of misery in the condition of
Mary Monson, that appealed directly to the heart; and that silent
but eloquent appeal was answered, as has just been stated, generously
and with warmth by the whole party from town. With
Anna Updyke the feeling went materially farther than with any
of her friends. Strange as it may seem, her interest in John
increased that which she felt for his mysterious client; and her
feelings became enlisted in the stranger's behalf, so much the
more, in consequence of this triangular sort of passion.

The morning of the day on which the party crossed the country
from Rattletrap to Timbully, Timms arrived at the latter place.

He was expected, and was soon after closeted with the senior
counsel in the pending and most important cause.

“Does the District Attorney intend to move for the trial?”
demanded Dunscomb, the instant the two were alone.

“He tells me he does, sir; and that early in the week, too.
It is my opinion we should go for postponement. We are hardly
ready, while the State is too much so.”

“I do not comprehend this, Timms. The law-officers of the
public would hardly undertake to run down a victim, and she a
solitary and unprotected woman!”

“That's not it. The law-officers of the State don't care a
straw whether Mary Monson is found guilty or is acquitted. That
is, they care nothing about it at present. The case may be different
when they are warmed up by a trial and opposition. Our danger
comes from Jesse Davis, who is a nephew of Peter Goodwin,
his next of kin and heir, and who thinks a great deal of money
was hoarded by the old people; much more than the stocking
ever held or could hold, and who has taken it into his wise head
that the prisoner has laid hands on this treasure, and is carrying
on her defence with his cash. This has roused him completely,
and he has retained two of the sharpest counsel on our circuit,
who are beginning to work as if the bargain has been clenched in
the hard metal. Williams has given me a great deal of trouble
already. I know him; he will not work without pay; but pay
him liberally, and he is up to anything.”

“Ay, you are diamond cut diamond, Timms—outsiders in the
profession. You understand that I work only in the open court,
and will know nothing of this out-door management.”

“We do not mean to let you know anything about it, 'Squire,”
returned Timms, drily. “Each man to his own manner of
getting along. I ought to tell you, however, it has got out that
you are working without a fee, while I am paid in the most liberal
manner.”

“I am sorry for that. There is no great harm in the thing
itself; but I dislike the parade of seeming to be unusually generous.
I do not remember to have spoken of this circumstance
where it would be likely to be repeated; and I beg you will be
equally discreet.”

“The fact has not come from me, I can assure you, sir. It
puts me in too awkward a position to delight me; and I make it
a point to say as little as possible of what is disagreeable. I do
not relish the idea of being thought selfish by my future constituents.
Giniros'ty is my cue before them. But they say you
work for love, sir.”

“Love!” answered Dunscomb, quickly—“Love of what?—
or of whom?”

“Of your client — that's the story now. It is said that you
admire Miss Monson; that she is young, and handsome, and
rich; and she is to marry you, if acquitted. If found guilty
and hanged, the bargain is off, of course. You may look displeased,
'Squire; but I give you my word such is the rumour.”

Dunscomb was extremely vexed; but he was too proud to
make any answer. He knew that he had done that which, among
the mass of this nation, is a very capital mistake, in not placing
before its observation an intelligible motive — one on the level
of the popular mind — to prevent these freaks of the fancy dealing
with his affairs. It is true, that the natural supposition would
be that he worked for his fee, as did Timms, had not the contrary
got out; when he became subject to all the crude conjectures of
those who ever look for the worst motives for everything. Had
he been what is termed a favourite public servant, the very reverse
would have been the case, and there was little that he might not
have done with impunity; but, having no such claims on the
minds of the mass, he came under the common law which somewhat
distinguishes their control. Too much disgusted, however,

to continue this branch of the subject, the worthy counsellor at
once adverted to another.

“Have you looked over the list of the jurors, Timms?” he
demanded, continuing to sort his papers.

“That I never fail to do, sir, the first thing. It's my brief,
you know, 'Squire Dunscomb. All safe York law, now-a-days,
is to be found in that learned body; especially in criminal cases.
There is but one sort of suit in which the jury counts for nothing,
and might as well be dispensed with.”

“Which is—?”

“An ejectment cause. It's not one time in ten that they understand
anything about the matter, or care anything about it;
and the court usually leads in those actions — but our Duke's
county juries are beginning to understand their powers in all
others.”

“What do you make of the list?”

“It's what I call reasonable, 'Squire. There are two men on
it who would not hang Cain, were he indicated for the murder of
Abel.”

“Quakers, of course?”

“Not they. The time was when we were reduced to the
`thee's' and the `thou's' for this sort of support; but philanthropy
is abroad, sir, covering the land. Talk of the schoolmaster!
— Why, 'Squire, a new philanthropical idee will go two
feet to the schoolmaster's one. Pro-nigger, anti-gallows, eternal
peace, woman's rights, the people's power, and anything of that
sort, sweeps like a tornado through the land. Get a juror who
has just come into the anti-gallows notion, and I would defy the
State to hang a body-snatcher who lived by murdering his subjects.”

“And you count on two of these partisans for our case?”

“Lord no, sir. The District Attorney himself knows them
both; and Davis's counsel have been studying that list for the

last week, as if it were Blackstone in the hands of a new beginner.
I can tell you, 'Squire Dunscomb, that the jury-list is a most important
part of a case out here in the country!”

“I am much afraid it is, Timms; though I never examined
one in my life.”

“I can believe you, sir, from what I have seen of your practice.
But principles and facts won't answer in an age of the world
when men are ruled by talk and prejudice. There is not a case
of any magnitude tried, now-a-days, without paying proper attention
to the jury. We are pretty well off, on the whole; and I
am tolerably sanguine of a disagreement, though I fear an acquittal
is quite out of the question.”

“You rely on one or two particularly intelligent and disinterested
men, ha! Timms?”

“I rely on five or six particularly ignorant and heated partisans,
on the contrary;—men who have been reading about the abolishing
of capital punishments, and who in gin'ral, because they've
got hold of some notions that have been worn out as far back as
the times of the Cæsars, fancy themselves philosophers and the
children of progress. The country is getting to be full of what I
call donkeys and racers; the donkey is obstinate, and backs going
up hill; while the racers will not only break their own necks,
but those of their riders too, unless they hold up long before they
reach their goal.”

“I did not know, Timms, that you think so much on such
subjects. To me, you have always appeared to be a purely working-man
— no theorist.”

“It is precisely because I am a man of action, and live in the
world, and see things as they were meant to be seen, that I laugh
at your theorists. Why, sir, this country, in my judgment, for
the time being, could much better get along without preaching,
than without hanging. I don't say always; for there is no telling
yet what is to be the upshot of preaching. It may turn out as

many think; in which case human natur' will undergo a change
that will pretty much destroy our business. Such a state of things
would be worse for the bar, 'Squire, than the Code, or the last
fee-bill.”

“I'm not so sure of that, Timms; there are few things worse
than this infernal Code.”

“Well, to my taste, the fee-bill is the most disagreeable of the
two. A man can stand any sort of law, and any sort of practice;
but he can't stand any sort of pay. I hear the circuit is to be
held by one of the new judges — a people's man, altogether.”

“You mean by that, I suppose, Timms, one of those who did
not hold office under the old system? It is said that the new
broom sweeps clean — it is fortunate ours has not brushed away
all the old incumbents.”

“No, that is to come; and come it will, as sure as the sun
rises. We must have rotation on the bench, as well as in all
other matters. You see, 'Squire, rotation is a sort of claim with
many men, who have no other. They fancy the earth to have
been created on a sort of Jim Crow principle, because it turns
round.”

“That is it; and it explains the clamour that is made about
it. But to return to this jury, Timms; on the whole, you like
it, I should infer?”

“Not too well, by any means. There are six or eight names
on the list that I'm always glad to see; for they belong to men
who are friendly to me—

“Good God, man — it cannot be possible that you count on
such assistants in a trial for a human life!”

“Not count on it, 'Squire Dunscomb! I count on it from an
action of trespass on the case, to this indictment — count on it,
quite as much, and a good deal more rationally, than you count
on your law and evidence. Didn't I carry that heavy case for
the railroad company on that principle altogether? The law was

dead against us they say, and the facts were against us; but the
verdict was in our favour. That's what I call practising law!”

“Yes; I remember to have heard of that case, and it was
always a wonder with the bar how you got along with it. Had
it been a verdict against a corporation, no one would have thought
anything of it — but to carry a bad case for a company, now-a-days,
is almost an unheard-of thing.”

“You are quite right, sir. I can beat any railroad in the
State, with a jury of a neighbourhood, let the question or facts
be what they may; but, in this instance, I beat the neighbourhood,
and all through the faith the jury had in me. It's a blessed
institution, this of the jury, 'Squire Dunscomb! — no doubt it
makes us the great, glorious, and free people that we are!”

“If the bench continue to lose its influence as it has done, the
next twenty years will see it a curse of the worst character. It
is now little more than a popular cabal in all cases in the least
calculated to awaken popular feeling or prejudice.”

“There's the rub in this capital case of ours. Mary Monson
has neglected popularity altogether; and she is likely to suffer
for it.”

“Popularity!” exclaimed Dunscomb, in a tone of horror —
“and this in a matter of life and death! What are we coming
to in the law, as well as in politics! No public man is to be
found of sufficient moral courage, or intellectual force, to stem
this torrent; which is sweeping away everything before it. But
in what has our client failed, Timms?”

“In almost everything connected with this one great point;
and what vexes me is her wonderful power of pleasing, which is
completely thrown away. 'Squire Dunscomb, I would carry this
county for Free Sile or ag'in it, with that lady to back me, as a
wife.”

“What, if she should refuse to resort to popular airs and
graces?”

“I mean, of course, she aiding and abetting. I would give
the world, now, could we get the judge into her company for
half an hour. It would make a friend of him; and it is still
something to have a friend in the judge in a criminal case.”

“You may well say `still,' Timms; how much longer it will
be so, is another matter. Under the old system it would be
hopeless to expect so much complaisance in a judge; but I will
not take it on myself to say what a people's judge will not do.”

“If I thought the thing could be managed, by George I would
attempt it! The grand jurors visit the gaols, and why not the
judges? What do you think, sir, of an anonymous letter hinting
to his honour that a visit to Mrs. Gott — who is an excellent
creature in her way — might serve the ends of justice!”

“As I think of all underhanded movements and trickery. No,
no, Timms; you had better let our client remain unpopular, than
undertake anything of this nature.”

“Perhaps you are right, sir. Unpopular she is, and will be,
as long as she pursues her present course; whereas she might
carry all classes of men with her. For my part, 'Squire Dunscomb,
I've found this young lady” — here Timms paused, hemmed,
and concluded by looking a little foolish — a character of
countenance by no means common with one of his shrewdness
and sagacity.

“So, so, Master Timms,” said the senior counsel, regarding
the junior with a sort of sneer — “you are as great a fool as my
nephew, Jack Wilmeter; and have fallen in love with a pretty
face, in spite of the grand jury and the gallows!”

Timms gave a gulp, seemed to catch his breath, and regained
enough of his self-command to be able to answer.

“I'm in hopes that Mr. Wilmeter will think better of this,
sir,” he said, “and turn his views to a quarter where they will
be particularly acceptable. It would hardly do for a young gentleman
of his expectations to take a wife out of a gaol.”

“Enough of this foolery, Timms, and come to the point. Your
remarks about popularity may have some sense in them, if matters
have been pushed too far in a contrary direction. Of what do you
complain?”

“In the first place, she will not show herself at the windows;
and that offends a great many persons, who think it proud and
aristocratic in her not to act as other criminals act. Then, she
has made a capital mistake with a leading reporter, who sent in
his name, and desired an interview; which she declined granting.
She will hear from that man, depend on it, sir.”

“I shall look to him, then — for, though this class of men is
fast putting the law under foot, it may be made to turn on them,
by one who understands it, and has the courage to use it. I shall
not allow the rights of Mary Monson to be invaded by such a
fungus of letters.”

“Fungus of letters! Ahem — if it was anybody but yourself,
'Squire, that I was talking to, I might remind you that these
funguses flourish on the dunghill of the common mind.”

“No matter; the law can be made to touch them, when in
good hands; and mine have now some experience. Has this
reporter resented the refusal of the prisoner to see him?”

“He is squinting that way, and has got himself sent to Biberry
by two or three journals, to report the progress of the trial. I
know the man; he is vindictive, impudent, and always uses his
craft to indulge his resentments.”

“Ay, many of those gentry are up to that. Is it not surprising,
Timms, that in a country for ever boasting of its freedom, men
do not see how much abuse there is of a very important interest,
in suffering these irresponsible tyrants to ride rough-shod over
the community?”

“Lord, 'Squire, it is not with the reporters only, that abuses
are to be found. I was present, the other day, at a conversation
between a judge and a great town lawyer, when the last deplored

the state of the juries! `What would you have?' says his
Honour; `angels sent down from Heaven to fill the jury-boxes?'
Waal” — Timms never could get over the defects of his early
associations — “Waal, 'Squire,” he continued, with a shrewd
leer of the eyes, “I thought a few saints might be squeezed in
between the lowest angel in Heaven and the average of our
Duke's county pannels. This is a great fashion of talking that is
growing up among us to meet an objection by crying out, `men
are not angels;' as if some men are not better than others.”

“The institutions clearly maintain that some men are better
than others, Timms!”

“That's news to me, I will own. I thought the institutions
declared all men alike — that is, all white men; I know that the
niggers are non-suited.”

“They are unsuited, at least, according to the spirit of the institutions.
If all men are supposed to be alike, what use is there
in the elections? Why not draw lots for office, as we draw lots
for juries? Choice infers inequalities, or the practice is an absurdity.
But here comes McBrain, with a face so full of meaning,
he must have something to tell us.”

Sure enough, the bridegroom-physician came into the room at
that instant; and without circumlocution he entered at once on
the topic that was then uppermost in his mind. It was the custom
of the neighbourhood to profit by the visits of this able practitioner
to his country place, by calling on him for advice in such
difficult cases as existed anywhere in the vicinity of Timbully.
Even his recent marriage did not entirely protect him from these
appeals, which brought so little pecuniary advantage as to be
gratuitous; and he had passed much of the last two days in
making professional visits in a circle around his residence that
included Biberry. Such were the means by which he had obtained
the information that now escaped from him, as it might
be, involuntarily.

“I have never known so excited a state of the public mind,”
he cried, “as now exists all around Biberry, on the subject of
your client, Tom, and this approaching trial. Go where I may,
see whom I will, let the disease be as serious as possible, all,
patients, parents, friends and nurses, commence business with
asking me what I think of Mary Monson, and of her guilt or
innocence.”

“That's because you are married, Ned,” — Dunscomb coolly
answered — “Now, no one thinks of putting such a question to
me. I see lots of people, as well as yourself; but not a soul has
asked me whether I thought Mary Monson guilty or innocent.”

“Poh! You are her counsel, and no one could take the liberty.
I dare say that even Mr. Timms, here, your associate, has never
compared notes with you on that particular point.”

Timms was clearly not quite himself; and he did not look as
shrewd as he once would have done at such a remark. He kept
in the back-ground, and was content to listen.

“I do suppose association with a brother in the law, and in a
case of life and death, is something like matrimony, Dr. McBrain.
A good deal must be taken for granted, and not a little on credit.
As a man is bound to believe his wife the most excellent, virtuous,
most amiable and best creature on earth, so is a counsel bound to
consider his client innocent. The relation, in each case, is confidential,
however; and I shall not pry into your secrets, any more
than I shall betray one of my own.”

“I asked for none, and wish none; but one may express surprise
at the intense degree of excitement that prevails all through
Duke's, and even in the adjacent counties.”

“The murder of a man and his wife in cold blood, accompanied
by robbery and arson, are enough to arouse the community.
In this particular case the feeling of interest is increased, I make
no doubt, by the extraordinary character, as well as by the singular
mystery, of the party accused. I have had many clients, Ned,

but never one like this before; as you have had many wives, but
no one so remarkable as the present Mrs. McBrain.”

“Your time will come yet, Master Dunscomb — recollect I
have always prognostieated that.”

“You forget that I am approaching sixty. A man's heart is
as hard and dry as a bill in chancery at that age — but, I beg
your pardon, Ned; you are an exception.”

“I certainly believe that a man can have affections, even at
four-score—and what is more, I believe that when the reason and
judgment come in aid of the passions—”

Dunscomb laughed outright; nay, he even gave a little shout,
his bachelor habits having rendered him more exuberant in
manner than might otherwise have been the case.

“Passions!” he cried, rubbing his hands, and looking round
for Timms, that he might have some one to share in what he
regarded as a capital joke. “The passions of a fellow of three-score!
Ned, you do not flatter yourself that you have been
marrying the Widow Updyke in consequence of any passion you
feel for her?”

“I do, indeed,” returned the Doctor, with spirit; mustering
resolution to carry the war into the enemy's country—“Let me
tell you, Tom Dunscomb, that a warm-hearted fellow can love a
woman dearly, long after the age you have mentioned — that is,
provided he has not let all feeling die within him, for want of
watering a plant that is the most precious boon of a most gracious
Providence.”

“Ay, if he begin at twenty, and keep even pace with his beloved
down the descent of time.”

“That may all be true; but, if it has been his misfortune to
lose one partner, a second—”

“And a third, Ned, a third — why not foot the bill at once,
as they say in the market?”

“Well, a third too if circumstances make that demand on

him. Anything is better than leaving the affections to stagnate
for want of cultivation.”

“Adam in Paradise, by Jove! — But, I'll not reproach you
again, since you have got so gentle and kind a creature, and one
who is twenty years your junior—”

“Only eighteen, if you please, Mr. Dunscomb.”

“Now, I should be glad to know whether you have added those
two years to the bride's age, or subtracted them from that of
the bridegroom! I suppose the last, however, as a matter of
course.”

“I do not well see how you can suppose any such thing, knowing
my age as well as you do. Mrs. McBrain is forty-two, an
age when a woman can be as loveable as at nineteen — more so,
if her admirer happens to be a man of sense.”

“And sixty-two. Well, Ned, you are incorrigible; and, for
the sake of the excellent woman who has consented to have you,
I only hope this will be the last exhibition of your weakness.
So they talk a good deal of Mary Monson, up and down the
country, do they?”

“Of little else, I can assure you. I am sorry to say, the tide
seems to be setting strongly against her.”

“That is bad news; as few jurors, now-a-days, are superior to
such an influence. What is said, in particular, Dr. McBrain?—
In the way of facts, I mean?”

“One report is that the accused is full of money; and that a
good deal of that which she is scattering broad-cast has been
seen by different persons, at different times, in the possession of
the deceased Mrs. Goodwin.”

“Let them retail that lie, far and near, 'Squire, and we'll turn
it to good account,” said Timms, taking out his note-book, and
writing down what he had just heard. “I have reason to think
that every dollar Miss Monson has uttered since her confinement—”

“Imprisonment would be a better word, Mr. Timms,” interrupted
the Doctor.

“I see no great difference,” replied the literal attorney —
“but imprisonment, if you prefer it. I have reason to think that
every dollar Mary Monson has put in circulation since she entered
the gaol at Biberry, has come from either young Mr. Wilmeter
or myself, in exchange for hundred-dollar notes — and, in one instance,
for a note of five hundred dollars. She is well off, I can
tell you, gentlemen; and if she is to be executed, her executor
will have something to do when all is over.”

“You do not intend to allow her to be hanged, Timms?”
demanded McBrain, aghast.

“Not if I can help it, Doctor; and this lie about the money,
when clearly disproved, will be of capital service to her. Let
them circulate it as much as they please, the rebound will be
in proportion to the blow. The more they circulate that foolish
rumour, the better it will be for our client when we come to
trial.”

“I suppose you are right, Timms; though I could prefer
plainer dealings. A cause in which you are employed, however,
must have more or less of management.”

“Which is better, 'Squire, than your law and evidence. But
what else has Dr. McBrain to tell us?”

“I hear that Peter Goodwin's nephew, who it seems had some
expectations from the old people, is particularly savage, and leaves
no stone unturned to get up a popular feeling against the accused.”

“He had best beware,” said Dunscomb, his usually colourless
but handsome face flushing as he spoke. “I shall not trifle in a
matter of this sort — ha! Timms?”

“Lord bless you, 'Squire, Duke's county folks wouldn't understand
a denial of the privilege to say what they please in a case
of this sort. They fancy this is liberty; and `touch my honour,

take your poker,' is not more sensitive than the feelin' of liberty
in these parts. I'm afraid that not only this Joe Davis, but the
reporters, will say just what they please; and Mary Monson's
rights will whistle for it. You will remember that our judge is
not only a bran-new one, but he drew the two years' term into
the bargain. No, I think it will be wisest to let the law, and
old principles, and the right, and true liberty, quite alone; and
to bow the knee to things as they are. A good deal is said about
our fathers, and their wisdom, and patriotism, and sacrifices;
but nobody dreams of doing as they did, or of reasoning as they
reasoned. Life is made up, in reality, of these little matters in
a corner; while the great principles strut about in buckram, for
men to admire them, and talk about them. I do take considerable
delight, 'Squire Dunscomb, in hearing you enlarge on a principle,
whether it be in law, morals, or politics; but I should no more
think of practysing on 'em, than I should think of refusing a
thousand dollar fee.”

“Is that your price?” demanded McBrain, with curiosity
— “Do you work for as large a sum as that, in this case,
Timms?”

“I'm paid, Doctor; just as you was” — the attorney never
stuck at grammar—“just as you was for that great operation on
the Wall-Street Millenary'ian—”

“Millionaire, you mean, Timms,” said Dunscomb, colly —
“it means one worth a million.”

“I never attempt a foreign tongue but I stumble,” said the
attorney, simply; for he knew that both his friends were familiar
with his origin, education, and advancement in life, and that it
was wisest to deny nothing to them; “but since I have been so
much with Mary Monson and her woman, I do own a desire to
speak the language they use.”

Again Dunscomb regarded his associate intently; something
comical gleaming in his eye.

“Timms, you have fallen in love with our handsome client,”
he quietly remarked.

“No, sir; not quite as bad as that, yet; though I will acknowledge
that the lady is very interesting. Should she be
acquitted, and could we only get some knowledge of her early
history — why, that might put a new face on matters.”

“I must drive over to Biberry in the morning, and have another
interview with the lady myself. And now, Ned, I will join
your wife, and read an epithalamium prepared for this great occasion.
You need not trouble yourself to follow, the song being
no novelty; for I have read it twice before on your account.”

A hearty laugh at his own wit concluded the discourse on the
part of the great York counsellor; though Timms remained some
time longer with the Doctor, questioning the latter touching
opinions and facts gleaned by the physician in the course of his
circuit.